Citation: R v Holmes (No 2) [2020] NSWSC 136
Court: Supreme Court of New South Wales
Date: 5 February 2020
Judge: Campbell J
Background
This is a brief procedural ruling arising from a criminal trial before Campbell J. The accused was on trial before a jury when a problem emerged with the composition of the jury during the early stages of the proceedings.
The court discharged the entire jury after forming the view that an individual juror was affected by apprehended bias. Campbell J also considered there was a real possibility that the tainted juror had influenced the remaining members of the panel.
Because the trial was still in its early stages, the court determined it was appropriate to restart the proceedings with a fresh jury of twelve. A new panel was to be made available the following Monday.
Legal Issues
- Whether the jury should be discharged in light of an individual juror's apprehended bias and the potential for that juror to have infected the other jurors
- Whether the accused was entitled to a certificate under s 6A(1)(c) of the Suitors Fund Act 1951 (NSW) given the circumstances of the discharge and the ordering of a new trial
Decision
Campbell J identified three reasons for discharging the jury: the apprehended bias of one juror, the risk that juror had contaminated the rest of the panel, and the early stage of the trial, which made a fresh start with a full jury of twelve the proper course.
The accused's counsel then applied for a certificate under s 6A(1)(c) of the Suitors Fund Act 1951 (NSW). That provision allows a certificate to be issued where proceedings are discontinued and a new trial ordered. The court was satisfied that the relevant sub-paragraph applied because the discharge was not caused by jury disagreement, nor by any act, neglect or default of the accused, his solicitor, or his counsel.
Campbell J granted the certificate accordingly and directed the accused's solicitor to prepare a draft in the appropriate form for the court's signature and sealing.
Orders Made
- A certificate granted to the accused under s 6A of the Suitors Fund Act 1951 (NSW)
- The solicitor for the accused directed to bring in a certificate in proper form for engrossment by the court
Key Takeaways
- Under s 6A(1)(c) of the Suitors Fund Act 1951 (NSW), a certificate may be granted where a trial is discontinued and a new trial ordered, provided the discontinuance was not attributable to jury disagreement or to any act, neglect or default of the accused or their legal representatives.
- Apprehended bias on the part of an individual juror, combined with the risk of that juror having influenced the broader panel, constituted sufficient grounds for discharging the entire jury in this case.
- The Supreme Court confirmed that the early stage of a trial is a relevant factor in determining whether proceedings should recommence before a full jury of twelve rather than continuing with a reconstituted panel.
- A Suitors Fund certificate records the reason the proceedings were discontinued and that the reason was not attributable to the accused or their lawyers, which is the threshold the court must be satisfied of before issuing one.
- No fault was attributed to the accused, his solicitor, or his counsel in this matter, making the certificate available as a matter of course under the applicable statutory provision.
Legislation and Cases Referenced
Legislation:
- Suitors Fund Act 1951 (NSW), s 6A(1)(c)
Cases cited: None cited in the judgment.